The Rohingya: Genocide in the Modern Era?

Publication Date: 
Thursday, December 3, 2015

Ethnically and religiously distinct from the majority population, the Rohingya people in Myanmar face state-sponsored discrimination, and mounting evidence of serious human rights abuses, according to numerous recent reports. Increasingly urgent reports – including from the US Holocaust Memorial Museum, the International State Crime Initiative and Yale Law School – argue that this state-sponsored violence rises to the level of genocide. While the term “genocide” is often wielded in relation to a range of mass atrocities, it is a specifically defined crime under international law. Does the evidence in the case of the Rohingya support the claims of genocide? And perhaps more importantly, if the evidence points to genocide, what actions can or should be taken by the government of Myanmar, or the international community more generally?

Genocide under international law

The definition of genocide can be found in the 1948 Genocide Convention, which refers to “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group,” with enumerated acts including killings, causing of serious bodily harm, preventing births in the group, and “[d]eliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”[Art. 2]. We can thus establish three core elements: i) prohibited violent acts; ii) made against a specific protected group; iii) done with specific intent to destroy the group, in whole or in part. This post will examine each of these elements in turn in the case of the Rohingya, and then turn to the question of investigation and prosecution.

Do the violent acts against the Rohingya fit the definition of genocide?

The Genocide Convention sets out five specific prohibited categories of violence, any of which may amount to genocide:

(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.

In the context of Myanmar, extensive resources exist detailing numerous acts of violence that would fall under the above categories. The most grievous crimes include the massacre of Rohingya by security forces in 2012, the use of killing squads and state-organized riots, the intolerable condition of camps for displaced persons (which likely amounts to deliberate infliction of conditions calculated to bring about destruction of the group), and mass arrests, raids, torture, and rape of Rohingya by security forces. Furthermore, official policies limiting the ability of the Rohingya to marry, prohibiting non-married individuals from cohabitating, forcing Rohingya to use birth control, and the imposition of a two-child policy that applies only to Rohingya couples are a clear attempts by the state to limit and prevent births in the group. While the state has denied all allegations of abuse, discrimination, and genocide, it is important to note that under the Genocide convention, each act may be committed outright or by omission, meaning that failure to prevent or stop such acts would also fulfill these criteria.

Are the Rohingya an enumerated protected group?

Turning to the second element of genocide under the Convention, any attack set out above would need to be committed against either a national, ethnical, racial or religious group. In this case, the government of Myanmar has consistently refused to acknowledge the existence of the Rohingya as an ethnic group, but has generally classified them as Bengalis or simply illegal immigrants. While there has been some immigration from Bangladesh into the Rakhine province over the past hundred years, both with and without state approval, the Rohingya people have had a recorded presence in the Rakhine state since the late 18th century. They have continuously self-identified as a unique ethnic group, and have a distinct linguistic, cultural, and religious identity. While unique culture, history, and self-identification is generally sufficient to prove ethnic identity under the Genocide Convention, the behavior of the state towards the specific group may also be considered, and provides evidence toward both the classification of the group and the proof of state intent to commit acts amounting to genocide.

Furthermore, Myanmar’s government has clearly distinguished between the Rohingya and other ethnicities though extensive policies and public statements, including a memorable senior diplomat’s letter to the media in 2009 that included statements comparing the Rohingya to ogres, and claiming that, “[i]n reality, Rohingya are neither Myanmar people nor Myanmar’s ethnic group.” Counter intuitively, state officials’ identification of the Rohingya as a non-native ethnic group may be seen as evidence of a pervasive understanding of the Rohingya as a distinct group of people, albeit a persecuted one.

Is there evidence of intent to destroy the Rohingya, in whole or in part?

Turning to the third element, intent to commit genocide is an essential aspect to any determination relating to the possible commission of genocide, yet is also extremely difficult to prove. Due to the inherent challenges and ambiguity of state intent, the search for evidence of intent is often the defining feature of a genocide investigation, rather than evidence of mass atrocities, which alone are not sufficient to prove the existence of genocide. The challenge for establishing intent is simply that, understandably, few modern regimes keep explicit records of their intent to destroy a group of people.

In light of the general lack of conclusive, “smoking gun” evidence, the International Criminal Court (ICC) has held that intent “may be inferred from a number of facts and circumstances, such as the general context, the perpetration of other culpable acts systematically directed against the same group, the scale of atrocities committed, the systematic targeting of victims on account of their membership of a particular group, or the repetition of destructive and discriminatory acts” [Prosecutor v. Jelisic, paragraph 47]. While a formal inquiry would be necessary to conclusively determine the facts and circumstances necessary to prove intent, the public actions and statements of government officials, prejudicial laws, and active enforcement of discriminatory policies including disenfranchisement, displacement, and enforced statelessness are only some examples of the compelling allegations that may provide evidence of the Myanmar government’s deliberate intent to commit genocide. Without a thorough investigation by an impartial commission, however, the allegations cannot be substantiated and no further action may be taken.

Investigation and Prosecution

As outlined above, the recent reports raise serious concerns regarding the existence of genocide in Myanmar. What, then, would it take to trigger domestic or international investigation or prosecution?

On the question of investigation, there is no single evidentiary standard for the creation of a commission of inquiry into suspected war crimes, including genocide. However, the UN, normally through the Secretary General’s office or the Human Rights Council, may decide whether or not to establish such commissions on an ad hoc basis. If a neutral and impartial commission can establish credible evidence relating to genocide, its findings could serve as a strong foundation for eventual prosecution.

With or without a commission of inquiry, however, what steps are available to punish those responsible? It is important to note that the Genocide Convention establishes clear obligation of all states to prosecute: perpetrators of genocide “shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals”[Art. 4].

In terms of individual criminal responsibility, one legal option would be international prosecution at the International Criminal Court (ICC). The Rome Statute grants the ICC jurisdiction over genocide, using the same definition as the Genocide Convention. However, the Court may only exercise jurisdiction if:

  • The accused is a national of a State Party or a State otherwise accepting the jurisdiction of the Court;
  • The crime took place on the territory of a State Party or a State otherwise accepting the jurisdiction of the Court; or
  • The United Nations Security Council has referred the situation to the Prosecutor, irrespective of the nationality of the accused or the location of the crime.

Myanmar is not State Party to the Rome Statute, nor has it otherwise accepted the jurisdiction of the Court. Without this jurisdiction, it is possible for the UN Security Council to refer a situation to the ICC, as occurred in Libya in 2011, though this requires political consensus which is often difficult to achieve within the Council. China, for example, maintains a strategic interest in Myanmar that may cause it to veto any proposed referral.

Short of international prosecution at the ICC, United States courts could provide an avenue for domestic legal action in the form of a civil suit under the US Alien Tort statute (ATS), which has previously been used to prosecute human rights violations that occurred outside of the US. Successful ATS cases, however, are notoriously complex, expensive, and rare; among other requirements, the defendant must be a former foreign government official responsible for the human rights violation, and must be served while in the United States. Despite these onerous conditions, a coalition of Muslim groups is currently pursuing an ATS case against Myanmar’s former President Thein Sein in New York state court. As ATS cases are civil suits, the coalition may only seek compensatory and punitive damages, and even if the plaintiffs win the case, the damages will be awarded only if the defendant has sufficient assets in the United States that may be seized by the court. Ultimately, the pursuit of an ATS case appears to be more useful as a tool to generate publicity and political will, rather than to bring about justice for the victims. Moreover, domestic prosecution of course remains a possibility in other states.

Ways forward

The presidential elections on November 8 seem, at the time of this writing, to be a cause for hope. Opposition leader Aung San Suu Kyi has worked for decades to improve democracy and human rights in Myanmar, and her party, the National League for Democracy (NLD), won a significant parliamentary majority. If the United Nations heeds the call for an inquiry into the allegations of genocide against the Rohingya people, it would fall to Suu Kyi and the NLD to fully cooperate with the investigation, cease violations of international law, including discriminatory and possible genocidal acts, resolve the conflict, and make restitution with the Rohingya people. This is a tall order for any new leader, let alone one in a country as fractiously partisan as Myanmar; Suu Kyi has thus far remained noticeably silent on the issue of the Rohingya. Encouragement of and cooperation with a commission of inquiry into the case of the Rohingya could be a first step towards reform and restitution, and Suu Kyi’s broad support as evidenced by the recent elections presents a unique opportunity for a change in state policy. It is crucial to keep the spotlight of international attention and diplomatic pressure directly on the government of Myanmar in order to force policy change and stop what very likely amounts to grave violations of human rights, if not outright genocide, of the Rohingya people.

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Hakimi bin Abdul Jabar's picture

The Genocide Convention and Customary International Law – The Rohingya Case Scenario

 

Recently, in the UN Human Rights Council Report of the Independent International Fact-Finding Mission on Myanmar (A/HRC/39/64) [hereinafter referred to as “the Report”], the Mission concluded that given these considerations on the inference of genocidal intent, that there is sufficient information to warrant the investigation and prosecution of senior officials in the Tatmadaw chain of command, so that a competent court can determine their liability for genocide in relation to the situation in Rakhine State.
https://www.ohchr.org/Documents/HRBodies/HRCouncil/FFM-Myanmar/A_HRC_39_...

 

The International Court of Justice (ICJ) has repeatedly stated that the Genocide Convention embodies principles that are part of general customary international law.
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), pp. 110-111, para. 161.

 

This means that whether or not States have ratified the Genocide Convention, they are bound as a matter of law by the principle that genocide is a crime under international law and that they thus have an obligation to prevent and punish it. In a recent judgment, the ICJ also expressly noted “the fact that the Convention was intended to confirm obligations that already existed in customary international law”.
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, I.C.J. Reports 2015,
p. 45, para. 95.

 

In its Judgment of 3 February 2006 in the case concerning Armed Activities on the Territory of the Congo (New Application 2002) (Democratic Republic of the Congo v. Rwanda), paragraph 64, the ICJ opined that the norm prohibiting genocide was assuredly a peremptory norm of international law (jus cogens).

 

On 2nd. December 2003, it was clearly decided in the ICTY Sentencing Judgment of Momir Nikolic (Case No. IT-02-60/1-S) that Justice is to be achieved through criminal proceedings. The purpose of such proceedings was multi-fold: the primary objective was to convict – and punish – those individually responsible for their crimes. The suffering and loss of the victims of such crimes would thereby be internationally recognised and acknowledged.  Furthermore, through criminal proceedings, the Security Council intended to send the message to all persons that any violations of international humanitarian law – and particularly the practice of “ethnic cleansing” – would not be tolerated and must stop.  It was further hoped that by highlighting breaches of obligations under international humanitarian law, and in particular the Geneva Conventions, that the parties to the conflict would recommit themselves to observing and adhering to those obligations, thereby preventing the commission of further crimes.  Finally, it was hoped that this commitment to end would promote respect for the rule of law globally.

 

 

Myanmar is a signatory to the Genocide Convention and had ratified the same.  However, its ratification was made with reservations :

 

  "(1) With reference to article VI, the Union of Burma makes the reservation that nothing contained in the said Article shall be construed as depriving the Courts and Tribunals of the Union of jurisdiction or as giving foreign Courts and tribunals jurisdiction over any cases of genocide or any of the other acts enumerated in article III committed within the Union territory.

       "(2) With reference to article VIII, the Union of Burma makes the reservation that the said article shall not apply to the Union."

 

 

The relevant articles of the convention are herewith reproduced verbatim :

 

Article VI
Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.

 

Article VIII
Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III.

 

As stated in the Report [A/HRC/39/64 17], the military (known as “Tatmadaw”) was identified as the main perpetrator of serious human rights violations and crimes under international law in Kachin, Rakhine and Shan States.  The same report lucidly states that the Tatmadaw is a state organ.

 

 

The Question of Attribution of the Rohingya Genocide to
the Respondent State of Myanmar on the Basis of the Conduct of Its Organs

 

The first of these two questions relates to the well-established rule, one of the cornerstones of the law of State responsibility, that the conduct of any State organ is to be considered an act of the State under international law, and therefore gives rise to the responsibility of the State if it constitutes a breach of an international obligation of the State.

 

This rule, which is one of customary international law, is reflected in Article 4 of the ILC Articles on State Responsibility as follows :

“Article 4
Conduct of organs of a State

1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State.

2. An organ includes any person or entity which has that status in accordance with the internal law of the State.”

 

When applied to the present case, this rule first calls for a determination whether the acts of genocide committed in Myanmar were perpetrated by “persons or entities” having the status of organs of the Republic of the Union of Myanmar (as the Respondent State is officially known at all material time) or Myanmar, under its internal law, as then in force. It must be said that the Report must justify an affirmative response to this question. It has been clearly shown by the Report that the Tatmadaw represent de jure and de facto organs of the state of Myanmar, having the status of organ of that State under its internal law.

 

Thus, it is on the basis of settled international legal jurisprudence that an independent, impartial and international Court will determine whether the Respondent State has incurred responsibility under the rule of customary international law set out in Article 8 of the ILC Articles on State Responsibility.

 

It must be argued that despite Myanmar’s reservations, the gravity of such atrocity crimes committed and the involvement of state organ(s) undoubtedly leaves no recourse but for the UNSC acting under Chapter VII of the United Nations Charter to refer the reported situations to the Office of the Prosecutor of the International Criminal Court and certainly do not oust the obligations and state responsibility of Myanmar under customary international law.

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